La demanderesse, société française, et la défenderesse, société néerlandaise, ont conclu un accord de coopération par lequel elles se sont engagées à s'acheter mutuellement les machines complémentaires qu'elles fabriquent et à les vendre sous leurs deux noms en tant que lignes intégrales. Elles sont convenues d'échanger le savoir-faire nécessaire pour assurer la commercialisation, l'installation, l'entretien et la réparation des machines. Après avoir été informée de ce que les dispositions de non-concurrence violaient l'article 85, paragraphe 1, du traité CE (devenu article 81, paragraphe 1, CE) et ne pouvaient bénéficier de l'exemption, la défenderesse a essayé d'obtenir l'accord de la demanderesse pour résilier le contrat. Comme elle n'y parvenait pas, elle a introduit auprès de la Commission européenne une plainte à l'encontre de la demanderesse. La demanderesse a ensuite notifié le contrat à la Commission européenne aux fins d'obtenir une exemption ou une attestation négative. En réponse à la plainte de la défenderesse, la Commission a confirmé que le contrat semblait restreindre la concurrence et a suggéré d'y apporter une modification afin qu'il puisse bénéficier de l'exemption. La demanderesse a ensuite saisi le Tribunal de première instance des Communautés européennes aux fins d'obtenir l'annulation de la décision de la Commission, mais s'est ensuite désistée de l'instance. La Commission a alors envoyé une lettre administrative de compatibilité à la demanderesse, précisant que le contrat était soumis à l'article 85, paragraphe 1, mais réunissait les conditions nécessaires à une exemption individuelle au titre de l'article 85, paragraphe 3. La défenderesse s'y est opposée et a introduit une procédure à l'encontre de la Commission devant le Tribunal de première instance, en prétendant que la Commission n'avait pas compétence pour rouvrir un dossier qu'elle avait précédemment classé et que la décision était viciée et non motivée. Entre-temps, la demanderesse a formé une demande d'arbitrage pour éviter de se heurter à la prescription selon le droit français. Le Tribunal de première instance a ensuite accédé à la demande de la défenderesse, en affirmant que la Commission n'avait pas le droit de prendre une nouvelle décision sur une question qui avait été déjà classée en raison de sa portée économique limitée et sans dûment indiquer les motifs de sa démarche. Dans la procédure d'arbitrage, la demanderesse allègue que la défenderesse aurait violé certaines clauses de leur contrat de coopération, dont la clause de non-concurrence (article 6).

'Article 6

33. Art. 6 provides, so far as material

6.1 Each party agrees to refrain reciprocally to develop, manufacture and sell, directly or indirectly through agents or subsidiaries of any nature equipment or parts thereof competing with or similar to the other party's equipment involved in this cooperation.

6.2 In the event that a potential customer requires either from [Respondent] or from [Claimant] equipment made by third parties for . . ., the Selling party shall seek approval from the other party, which approval will not unreasonably be withheld. In the event that one party will sell a third party's competitive machine without approval of the other party, the other party is entitled to a penalty to be paid as liquidated damages of 30% (thirty percent) of the replaced machine.

6.3 Only in the case of termination of this agreement in accordance with Art. 14 the non competing obligation as agreed in Art. 6.1 shall remain in force for the terminating party up till four years after such termination.

34. It is not disputed that Art. 6.3 infringes Art. 81(1) and would not be exempted. It is therefore void under Art. 81(2) of the Treaty. [Respondent] renounced its rights under this Article on 21 December 1992, that is, after the complaint was made, but before this Article would have expired. There is no claim in respect of it.

35. In adjudicating the claim by [Respondent] under Art.6, it is necessary to consider the answers to various questions which are here set out:

Whether there is an effect on trade between Member States,

Between what dates should the relevant market be considered,

What is the scope of the relevant market?

Whether the object of the agreement is restrictive of competition,

Whether the effect is restrictive,

What were the market shares of the parties, together or separately; the age of the market, and the effect of intellectual property rights, if any,

The effect of the judgment of the CFIEC,

The effect of the administrative proceedings, particularly having regard to the comfort letters,

Having regard to these factors whether Art. 6.1 infringes Art. 81(1),

Similarly, whether Art.6.2 infringes,

Whether Arts. 6.1, 6.2, and 6.3 are severable from the agreement or from each other.

Whether the agreement is exempted by a block exemption regulation,

Whether the Arbitrator has jurisdiction to consider whether the agreement, as severed or otherwise, could be exempted under Art. 81(1).

If so, whether it should be exempted,

If any of the provisions of Arts. 6.1 and 6.2 are valid, whether [Respondent] was in breach of them,

If so, did the breach cause damage to [Claimant], and what is the measure of such damage?

• Effect on trade between Member States

36. It is accepted that the agreement had an effect on trade between Member States, so it follows that Art. 81 is capable of applying to it.

. . . . . . . . .

• Object

38. The object of the agreement was to satisfy those customers who wanted the supply and installation of a . . . line under a single contract with a single supplier . . . The agreement is properly described as a co-operation agreement to that end. It is not strictly a joint selling agreement, as submitted by [Respondent], because one party sold to the other who alone sold to the end user, but it did have the result that both parties made sales. The parties were not at the time competitors. The parties' motive in entering the agreement was not to restrict competition. It is concluded that its object did not fall within the prohibition in Art. 81(1) of the Treaty.

• Appreciable Effect - Market Share

39. It is common ground that on this definition of the market the parties between them had a 50% share. In many markets such a share would be taken to demonstrate an anti-competitive effect. This market was, however, new. There were only about eight participants . . . It was seeking to supersede an existing market, with a new product. The participants were seeking to establish it. Considerable research and investment had gone into it, in [Claimant]'s case from 1975, and although the process was not patented or confidential, the know-how had been acquired over a period of time which gave them a justified advantage over newcomers which they were entitled to guard. [Claimant] cited Maize Seed 1982 E.C.R. 2015 and Commission decisions IV/26625-FN-CF of 28 May 1971 and ACEC-Berliet IV/26045 of 17 July 1968 in support of its overall submission that Art. 85(1) did not apply.

• Appreciable Effect - Art. 6.1

40. The words "develop, manufacture and sell" apply to the same equipment, to restrain each party from manufacturing the machine of the other. It had no effect on third party competitors, and standing on its own no deleterious effect on end users. [Respondent]'s original complaint referring as it did to the wording of Art. 6.1 but not Art. 6.2, disregarding the legal advice it had received . . . was probably an error, since no further reference was ever made to it. Apart from this, no one has ever suggested, throughout the administrative procedure, that Art. 6.1 had an anti-competitive effect. [Claimant] submitted that it had not. [Respondent] submitted that it had, but only if taken in conjunction with Art. 6.2. The Commission . . . did not suggest deleting or amending Art. 6.1, but only Arts. 6.2 and 6.3. The Arbitrator concludes that Art. 6.1 does not infringe Art. 81(1).

• Appreciable Effect - Art. 6.2

41.1 [Claimant] submitted that its scope was very narrow. It pointed out that the only occasion on which it had an effect was when one party sought to include a machine which competes with the other party's machine, in a single line, and even then it merely required a request for approval which could not be unreasonably withheld. It said that if the end user preferred a competitor's machine on its merits, withholding approval would be unreasonable, but if one party sought to supply the machine of a competitor with whom it had a commercial arrangement, such as an associated company, approval could be reasonably withheld.

41.2 [Respondent] submits that the effect was a serious restriction of competition since it prevented both parties from offering complete lines in conjunction with other manufacturers, even in cases where more favourable terms could be offered, to the detriment of the other party's competitors, impeding new entrants, and reducing the choice of the end user. In his oral evidence, Mr . . ., formerly [Respondent]'s product manager, said that the parties did not supply each other with information that they did not supply to an end user who was carrying out the installation itself or maintaining the line itself. Commenting on the . . . order in 1992, he said that prices were very competitive.

41.3 The information exchanged between the parties was not patented nor was it confidential. M . . . in his oral evidence said that anyone can install a . . ., but to do so successfully he had to learn how to do it. [Claimant]'s knowledge had been acquired over a decade. [Claimant] were undoubtedly keen that such knowledge should be guarded as far as possible, hence the clauses in the 1986 agreement, and the 1987 agreement, supported by contemporaneous correspondence, when [Respondent] sought technical information from [Claimant].

• The CFIEC judgment

42. The judgment refrained from expressing a view on the merits of the dispute. It held, in short, that since the Commission had closed its file in 1993 it could not re-open it without giving reasons, notably new evidence, which it had not done. Accordingly the 1997 decision was annulled. It gave some guidance to the national court . . . and also . . . it stated that comfort letters rejecting a complaint and closing the file have the content and effect of a decision. The result appears to be that the Commission can no longer be consulted under the procedures set out in its Notice on Co-operation with National Courts, OJ 1993 C39/6, nor can the national court adjourn the case whilst the Commission takes a decision on it.

• The Administrative Procedure

43.1 On . . . 1991 and . . . 1993 the Commission advanced the view that Art. 6.2 and Art. 6.3 were too restrictive of competition and not indispensable to attain the objective of the agreement. It suggested deleting Art. 6.3 and modifying Art. 6.2 to enable the parties to buy, without penalty, from third parties when offered more favourable terms. These letters were described by the CFIEC as comfort letters having the effect of decision.

43.2 On . . . 1995 the Commission sent a comfort letter to [Claimant] on its notification stating that the agreement contained certain restrictions which infringe Art. 85(1) but qualified for exemption under Art. 85(3). The CFIEC judgment did not refer at all to this letter.

43.3 On . . . 1997 the Commission wrote to the parties that the agreement is conceived as an instrument "to protect the position of the parties who have undertaken research on a substantial scale and who have specialised in supply of complex installations to an industry with specific requirements". It considered that the market share of the parties was necessarily high at the outset for a new product, but the parties were new entrants, and this has to be taken into account. It proceeded to consider Art. 85(3), and concluded that "even if the restrictions fall within Art. 85(1), the conditions set out in Art. 85(3) are fulfilled". This decision was annulled by the CFIEC, not because it was wrong, an issue on which the CFIEC did not pronounce, but because it considered that the Commission was not entitled to take it.

43.4 [Respondent] submits that the Arbitral Tribunal should follow the Commission's decision of 1991-93, since the CFIEC has annulled the 1997 decision. This disregards point 85 of the judgment, added unnecessarily for the assistance of the national court.1 The approach of this Tribunal must be to give weight to the Commission's views where they are consistent, but not where they have been modified or reversed, but in any event to examine the matter afresh and make up its own mind, as the CFIEC would have done had [Claimant]'s 1993 application proceeded.

43.5 The comfort letter of . . . 1995, although not referred to by the CFIEC, falls within the reasoning which led the CFIEC to annul the 1997 decision. Following and applying that reasoning, the Arbitrator concludes that it must also be regarded as a nullity.

• Conclusion on Art. 81(1)

44. Although the submissions of [Claimant] are powerful, this Tribunal is not satisfied that the disputed Art. 6.2 which is plainly anti-competitive on its face, does not fall within Art. 81(1). It is therefore void, pursuant to Art. 81(2). As stated above . . . it is satisfied that Art.6.1 does not infringe Art. 81(1). As stated above . . . both parties accept that Art. 6.3 infringes Art. 81(1).

• Exemption

45.1 It is accepted by both parties that the agreement does not fall within the specialisation block exemption Regulation 417/85 or any other block exemption.

45.2 As a result of Council Regulation 17/62 Article 9(1), the Commission has exclusive competence to grant individual exemptions under Art. 81(3). It is apparent that in 1991 and 1993 the Commission were minded to do so if amendments were made to Arts. 6.2 and 6.3, and in 1995 and 1997 were minded to do so subject to the deletion of Art. 6.3 which had already been renounced by [Claimant]. The fact is that the Commission never did do so. As a result of the CFIEC judgment, the Commission cannot now do so. [Claimant] submits that in those circumstances, this Tribunal is free to do so. [Respondent] submits that it cannot lawfully do so. Furthermore, the European Court of Justice has no jurisdiction to entertain a reference for a preliminary ruling from an Arbitrator. Article 17 of the agreement does not specify the law to be applied, but it has not been contested that the law of the European Union applies to the agreement in this arbitration. In these circumstances, the Arbitrator, like a national court, has no jurisdiction to exempt under Art. 81(3).

45.3 It follows that the questions whether the agreement fulfils the conditions for exemption do not require to be answered in this arbitration.

• Severance

46. [Claimant] submits that Arts. 6.2 and 6.3 should be severed leaving the rest of the agreement intact. [Respondent] submits that Art. 6.1 cannot be severed from Art. 6.2 because the two are so closely connected. Under EU law, "It is only those aspects of the agreement which are prohibited by Article 85(1) that are void. The agreement as a whole is void only if those parts of the agreement are not severable from the agreement itself (Case C 234/89, 1991 E.C.R. I 977 point 36)." Arts. 6.2 and 6.3 can be deleted without detriment to the rest of the agreement, including Art. 6.1. The provisions of Arts. 6.1 and 6.2 have received different treatment in EU competitive jurisprudence so that it cannot be said that they necessarily depend on each other - see for example their different treatment in Arts. 1 and 2 of Regulation 417/85. It is well established that severance is a matter for national law. It is common ground that French law (incorporating EU law) governs this agreement. Under French law, it is not disputed that in principle severance is possible. Furthermore, the agreement itself expressly provides in Art. 13.5 that if any provision of the agreement is found to be invalid, it shall be deemed void, but this shall not affect any other provision of the agreement. It is concluded by the Arbitrator that Arts. 6.2 and 6.3 which are void can be severed, but that Art. 6.1 remains valid.

• Breach of Article 6.1

47.1 [Claimant] submits that [Respondent] developed, manufactured, and sold, through agents or subsidiaries, equipment competing with theirs on three occasions . . .'

The arbitral tribunal finds that Article 6.1 was breached on three occasions and awards damages to Claimant for such infringements.

1
Point 85: 'In the present case, the national courts before which the agreement may be alleged to be incompatible with Art. 85 of the Treaty will, on assessing the agreement, be entirely at liberty to take into account, as factual evidence, the whole of the procedure conducted by the Commission.'